As soon as your case becomes out of the ordinary. The appellate process truly begins well before an appeal is taken. The best arguments need to be preserved (raised before the trial court) to protect the right of appellate review.

As a litigator, you have sat in the courtroom and watched a calendar call. The cases are almost all of a similar type. The judge usually hears personal injury cases, matrimonial cases, or commercial cases. If you watch the livestream of oral argument of New York’s appellate courts, on any given day you will almost always hear that combination. 

In some ways, appellate judges and law clerks are the last remaining generalists. To communicate the best arguments, one should step back from the case and synthesize it to the most critical point in case the judge or law clerk reading your brief is not as familiar with the area of law as you are.

There is a short-term and long-term answer to this question. 

The short-term answer is taking the appellate writing approach to motions, increasing the odds of winning the motion. Trial courts face a tremendous volume of motions. Addressing the complex issues of the case in a direct way can be helpful to the court.

The long-term answer is the motion papers will become the record on appeal that the appellate court judges and law clerks will read. Reading the strongest arguments in a familiar way in the record helps reinforce the arguments raised in the appellate briefing.

At its core, a trial is about using the law to shape how a judge or jury hears the facts. Trials can be long and complicated. By retaining appellate counsel to draft motions in limine, requests to charge, and handle other purely legal issues, the trial attorney can spend more time focusing on the delivery of facts to the jury.